The Human Rights Commission has launched a legal action against the Government and the Family Court, accusing them of failing to ensure children are adequately represented in court proceedings.

The civil lawsuit against the director of the Department of Child and Family Services, the Minister of Social Development and Sport and the Family Court was filed last week with the Supreme Court on behalf of three minors, who cannot be named for legal reasons.

The legal challenge came just days before the new government announced plans to “enhance the existing protocol that assigns a litigation guardian to children whose custody, care, or control is before the courts”.

In its Throne Speech the Progressive Labour Party pledged to amend the Children Act 1998 to achieve a greater degree of protection and care for children.

In its lawsuit, the HRC calls for litigation guardians and independent lawyers to be appointed in legal proceedings to ensure children’s best interests are protected.

The commission alleges that for nearly two decades the defendants have acted “unlawfully” and failed to ensure that children in legal proceedings have been provided with an independent litigation guardian and a lawyer.

In an affidavit that has been filed as part of their case, Sara Clifford, the acting executive officer of the Human Rights Commission, maintains that children should not be denied their statutory right to representation in family courts provided by section 35 of the Children’s Act 1998.

“For the past 18 years the defendants have acted unlawfully in failing to follow and enforce a statutory provision that was specifically enacted to protect children by providing them with their own independent social worker and their own lawyer.

“Consequently the vast majority of orders made by the Family Court at the request of the director of Child and Family Services have been granted without any independent challenges made on behalf of the children.”

The Human Rights Commission claims the defendants have failed or refused to provide children with the right to be represented by a independent litigation guardian and lawyer.

Ms Clifford added: “The Family Court has acknowledged that the court do not apply S35 as the provision is entirely unenforceable due to the director of the Department of Child and Family Services, the Minister of Social Development’s refusing to pay for the services of those appointed.”

Bermuda’s Children’s Act, which is based on similar UK legislation, states that a court “shall” appoint a litigation guardian for a child in specified proceedings unless “it is satisfied it is not necessary to safeguard [the child’s] interests”.

Previously director of Child and Family Services, Alfred Maybury, told The Royal Gazette, that the appointment of a litigation guardian and a lawyer for a child was not mandatory under the Act, and was at the discretion of the court, not his department.

“The court has got it right,” Mr Maybury said. “They look at each case on its own merits and make a decision.

“We believe that the best interests of the child have been represented in every case.”

In a further affidavit included in the HRC’s case, Tiffane Thomas, a qualified litigation guardian, describes the current situation in Bermuda as “extraordinary and alarming”.

“The only way to have the children’s welfare properly protected is to provide them with proper, qualified, effective and reliable representation, just as the Act in England has developed,” she says. “That requires director of the Department of Child and Family Services and the Minister of Social Development to fund the services of those appointed.

“I find it extraordinary and alarming that while there is a system available to protect children’s welfare the defendants are frustrating it by each denying responsibility as they choose to step away from their obligation to protect children.”

The Royal Gazette contacted the Ministry of Social Development and Sport for comment; however no response was received.

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